ACT heritage protection

19 Aug 2016 - 16:37 | Version 3 |

The Heritage Act 2004 (ACT) ('Heritage Act') provides a comprehensive scheme for the recognition, registration and protection of heritage places and objects.

The one exception is that provision for the protection of individual trees of heritage significance in built up urban areas is provided for in the Tree Protection Act 2005 (ACT), rather than in the Heritage Act (see Chapter 6 in this Handbook for more information on tree protection).

Heritage Register

The Heritage Register ('the register'), established by Part 4 of the Heritage Act, is a list of recognised heritage places and objects in the ACT. The register also includes provisionally registered places and objects, as well as places and objects that have been nominated for inclusion. The register is maintained by the ACT Heritage Council. It contains information about each registered place or object including:
  • its name and location or address
  • a statement about its heritage significance
  • whether it is permanently or provisionally registered and the date of registration * if it is provisionally registered, the period of registration
  • any heritage guidelines, heritage agreements, heritage directions or enforcement orders relating to the place or object (s 20).
Places on the register include, for example, a geological formation in Deakin known as the Deakin anticline, Aboriginal sites in Amaroo, Gunghalin, Kaleen and other suburbs, Alt Crescent in Ainslie, St Christopher's Cathedral, Manning Clark's house in Forrest and Gorman House in Braddon. Objects on the register include the Civic Merry Go Round and Organ, a map of Lanyon (c.1834) and a collection of Aboriginal stone artefacts held by the Canberra Museum and Art Gallery.

The full Heritage Register is publicly available on ACT Heritage's website (see Contacts list at the back of this book).

ACT Heritage Council

The ACT Heritage Council, established by Part 3 of the Heritage Act, is central to many of the processes under that Act, including registration. Its members include the ACT Conservator of Flora and Fauna, the chief planning executive and nine other members, appointed by the minister responsible for heritage. Six of these members are selected for their expertise and three are public representatives. The background and expertise of current members are set out on the Heritage Council website.

As well as identifying, assessing, conserving and promoting places and objects in the ACT with natural and cultural heritage significance, the council also performs functions such as public education and advising the minister on the management and promotion of heritage (s 18).

Criteria for assessing heritage significance

In order for a place or object to be registered, it must have heritage significance. This means that the place or object must satisfy one or more of the criteria set out in section 10 of the Heritage Act, including:
  • importance to the course or pattern of the ACT's cultural or natural history
  • status as uncommon, rare or endangered aspects of the ACT's cultural or natural history
  • potential to yield information that will contribute to an understanding of the ACT's cultural or natural history
  • importance in demonstrating the principal characteristics of a class of cultural or natural places or objects
  • i mportance in exhibiting particular aesthetic characteristics valued by the ACT community or a cultural group in the ACT
  • importance in demonstrating a high degree of creative or technical achievement for a particular period
  • strong or special association with the ACT community, or a cultural group in the ACT for social, cultural or spiritual reasons
  • special association with the life or work of a person, or people, important to the history of the ACT.

Heritage registration process

Part 6 of the Heritage Act sets out the process for heritage registration. Any person can apply to the Heritage Council ('the council') to nominate a place or object for provisional registration on the register. The nomination must be in writing and include a statement about why the item has heritage significance (s 28). The reasons should refer to one or more of the criteria set out above. ACT Heritage, which is part of the Environment and Planning Directorate, provides heritage advice on nominations and the Heritage Assessment Policy, available on its website, is designed to assist community members to prepare nominations. The Environmental Defenders' Office (ACT) can also provide assistance to people who are seeking to have an item included on the register (see Contacts list at the back of this book).

The council considers the nomination application against the criteria and decides whether or not to provisionally register the place or object (s 32). An application can be made for an urgent decision in situations where, for example, a place is under imminent threat or developers wish to avoid delays in a development project. In such cases the council must, as far as practicable, decide whether or not to provisionally register the place or object within 20 working days (or 60 working days if the place is a precinct) (s 30).

The council must give notice of its decision about provisional registration (s 34). The notice invites public comment on whether the item should be included permanently on the register. Comments must be provided to the council within 4 weeks (s 37).

Following the public consultation period, the council must give the minister a report setting out the council's views about registration of the item and identifying any issues raised in public comments (s 38). The minister has 15 working days to direct the council to give further consideration to certain issues (s 39). The council must then decide whether the place or object should be subject to final registration (s 40).

The council must give notice of its final decision, which is reviewable by the ACT Civil and Administrative Tribunal (ACAT). Persons that have a right to seek review include the owner, occupier, lessee, nominator or any person who made comments during the public consultation period (ss 13 and 114).

Provisional registration provides immediate protection while further steps, such as public consultation, are being carried out. Provisional registration lasts five months (or nine months for a precinct), but may be extended up to a further three months in some circumstances (s 35). Final registration of a heritage place or object provides ongoing legal protection.

Under Part 7 of the Heritage Act, any person can apply, in writing, to the council to have the heritage registration of a place or object cancelled. Prior to cancelling a registration, the council is required to go through a process similar to that undertaken to register a place or object, including public consultation. The council can only cancel the registration of a place or object if satisfied, on reasonable grounds, that the place or object no longer has heritage significance (s 49(2)).

Effect of registration on development activity

For most development applications relating to a registered or provisionally registered place or object, the Heritage Council provides advice to the ACT Planning and Land Authority (ACTPLA) about the effect of the development on the heritage significance of that place or object and about possible ways of avoiding or minimising the impact of the development on the heritage significance of the place or object (s 60). The council may also advise about the effect on a nominated place or object but only if, in the council's opinion, it is likely to have heritage significance. The council may also advise that approval of the development should be subject to conditions, for example, requiring compliance with an approved conservation management plan (s 61).

ACTPLA must consider that advice in approving or refusing the development application and the council generally has the right to apply for review in ACAT of the authority's decision (see s 60 of the Heritage Act and the Planning and Development Act 2007 (ACT) which is discussed in further detail in Chapter 3 of this Handbook).

Heritage directions

The Heritage Council has the power to give a heritage direction to the owner or occupier of a place or object or to a person whose work affects the place or object (s 62). The content of the heritage direction may be to do, or not to do, something to conserve the place or object, for example, an order to undertake essential maintenance on a place. A heritage direction may only be issued if the council is satisfied that immediate protection is justified due to a serious and imminent threat to the heritage significance of the place or object or to an Aboriginal place or object (s 62(3)).

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Contravention of a heritage direction is an offence with a maximum penalty of 1,000 penalty units (currently $150,000 for an individual and $750,000 for a corporation) (s 65 of the Heritage Act and s 133 of the Legislation Act 2001 (ACT)). If the owner or occupier fails to comply with the direction, a person authorised by the ACT government may enter the premises to do the things necessary to comply with the direction (s 66).

Heritage orders and offences

The Heritage Council, or any other person with the Court's leave, may apply to the ACT Supreme Court for a heritage order, which is a civil order similar to an injunction (s 68). The Court can only grant a heritage order if it is satisfied that a person has contravened, or is likely to contravene, certain offence provisions in the Heritage Act, such as contravening a heritage direction, and that an order is necessary to avoid material harm to the heritage significance of the place or object (s 69).

Section 74 of the Heritage Act contains offences for diminishing the heritage significance of a registered place or object. For instance, where a person is reckless as to the consequences of their conduct, the maximum penalty is 1,000 penalty units (currently $150,000 for an individual and $750,000 for a corporation). There are a range of exceptions to the offences including where the action is taken in accordance with an excavation permit, conservation management plan or statement of heritage effect approved by the council (s 76 and Pt 10B).

Authorised persons have significant powers under Part 14 of the Act, including search and seizure powers to enforce the provisions of the Act.

Heritage agreements

Under Part 15, the minister has the power to enter into heritage agreements with the owner of a place or object, or with another person where the owner consents (s 99). The place or object in question need not be registered. Heritage agreements are made on the advice of the Heritage Council and may relate, for example, to:
  • conservation of the place or objects
  • restrictions on the use of the place or object
  • provision of financial, technical or other professional advice or assistance needed for the conservation of the place or object
  • availability of the place or object for public inspection (s 100).
Heritage agreements are attached to the land where the place or object is located and are binding on the owner. Such agreements must be lodged for registration under the Land Titles Act 1925 (ACT) (s 103). The council may arrange for the provision of financial, technical or other assistance for the conservation of a place or object subject to a heritage agreement (s 104).

Protection of Aboriginal heritage places and objects

All Aboriginal places and objects are protected in the ACT, regardless of whether they meet the heritage significance criteria in section 10 or are included on the register. That is, all places and objects associated with Aboriginal people because of Aboriginal tradition are protected. There are specific offences relating to the damage of Aboriginal places or objects, which are similar to the offences relating to registered places and objects (s 75).

An Aboriginal heritage place or object may also be included on the register in the same way as any other heritage place or object. These places impose specific obligations on the Heritage Council to consult with each representative Aboriginal organisation, as defined under section 14 of the Heritage Act, prior to making a decision on registration (s 31).

Special provision is made under Part 8 of the Heritage Act for the discovery of Aboriginal places or objects. A person who discovers a place or object that he or she thinks is an Aboriginal place or object must report the discovery to the council within 5 working days (s 51). This reporting obligation does not apply if the item is registered or if the person has a traditional Aboriginal affiliation with the land where it was discovered (s 52). The council must then arrange consultations with the relevant Aboriginal organisations and decide whether to provisionally register the place or object (s 53).

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